J.M., et al., Plaintiffs, v. KARLA MAJOR, et al., Defendants Case No. 6:18-cv-00739-YY United States District Court, D. Oregon Filed December 14, 2022 Counsel Steven V. Rizzo, Mary Skjelset, Rizzo Bosworth Eraut PC, Portland, OR, Nadia H. Dahab, Sugerman Dahab, Portland, OR, for Plaintiffs. James S. Smith, Jill Schneider, Department of Justice, Trial Division, Portland, OR, Elleanor H. Chin, Oregon Department of Justice, Salem, OR, for Defendants Karla Major, Marcy Stenerson, Jennifer Laib, Heather Uerlings, Sherrie Mahurin, Oregon Department of Human Services, Michelle Shields, Stacey Daeschner, Billy Cordero, Desta Walsh, Dawn Hunter, Temre Yann, Lacey Andresen. Melissa Mary Miller, Pro Se. Casey Ray Miller, Pro Se. You, Youlee Y., United States Magistrate Judge ORDER *1 Plaintiffs are four minor children who have sued defendants Oregon Department of Human Services (“DHS”), individual DHS employees,[1] and former DHS-certified foster parents Casey and Melissa Miller, alleging claims of civil rights violations under 42 U.S.C. § 1983, abuse of vulnerable persons in violation of O.R.S. 124.100, and claims of common law negligence and sexual battery. Currently pending is the state defendants’ motion for an extension of time to produce a third and final privilege log. ECF 259. In the time since filing the motion, the state defendants have produced the privilege log in question. Chin Decl. ¶ 2, ECF 280. Plaintiffs oppose the motion and instead argue that any privilege the state defendants have asserted in the final privilege log should be deemed waived. Resp. Supp. Br. 1, ECF 298. Plaintiffs also ask for reconsideration of a number of previous orders regarding privilege, with the proposed end result being a ruling that all claims to privilege are waived. Id. (requesting reconsideration of Orders ECF 164, 182, and 249); see also id. at 8 n.7; id. at 12 n.16; id. at 17 n.20. Rule 34 requires a party responding to a request for production to “respond in writing within 30 days” that the party will “produce copies of the documents” or “state with specificity the grounds for objecting to the request, including the reasons.” FED. R. CIV. P. 34(b)(2)(A)–(B). If a party objects to producing certain documents on the basis of privilege, the party must “(i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” FED. R. CIV. P. 26(b)(5)(A). A privilege log is a common, though not required, method of asserting privilege under the Federal Rules. Franco-Gonzalez v. Holder, No. CV 10-2211-DMG DTBX, 2013 WL 8116823, at *6 (C.D. Cal. May 3, 2013) (citing Caudle v. District of Columbia, 263 F.R.D. 29, 35 (D.D.C. 2009)). There is no per se rule that the “failure to produce a privilege log in a timely manner triggers a waiver of privilege.” Coal. for a Sustainable Delta v. Koch, No. 108-CV-00397 OWW GSA, 2009 WL 3378974, at *3 (E.D. Cal. Oct. 15, 2009) (quoting Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Ct. for Dist. of Mont., 408 F.3d 1142, 1147 (9th Cir. 2005). Rather, the Ninth Circuit instructs courts to assess waiver based on an insufficient or untimely privilege log on a case-by-case basis, taking into account the following factors: 1) the degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged; 2) the timeliness of the objection and accompanying information about the withheld documents; 3) the magnitude of the document production; and *2 4) other particular circumstances of the litigation that make responding to discovery unusually easy or hard. Burlington Northern, 408 F.3d at 1149. “These factors should be applied in the context of a holistic reasonableness analysis, intended to forestall needless waste of time and resources, as well as tactical manipulation of the rules and the discovery process.” Id. Regarding the first factor, the final privilege log here includes, where applicable, information about each document's author, recipients, date, and subject, the basis of the claimed privilege, and a short description of the document's subject matter. Chin Decl., Ex. 1, ECF 281. Plaintiffs do not assert that any of the specific entries are inadequate for plaintiffs or the court to evaluate whether each claimed document is privileged. See Burlington Northern, 408 F.3d at 1149. Rather, plaintiffs focus primarily on the second factor— the timeliness of the final log—as the basis for finding that the claimed privilege should be waived. See Resp. Supp. Br. 19–21, ECF 298. But plaintiffs’ arguments on timeliness fail to fully account for previous privilege log productions or the numerous rulings made throughout the case regarding the privilege log. For example, plaintiffs correctly state that this final privilege log was delivered “more than four years after the case was filed.” Id. 19 (emphasis omitted). But the state defendants also produced two other privilege logs in February and May of 2021, along with an initial eight-item log served in November of 2020. Chin Decl. ¶¶ 19–23, ECF 310. Nor does plaintiffs’ position reflect the parties’ extensive briefing and the court's earlier orders regarding privileged materials and prior privilege logs, or the court's approval of defendants “rolling” privilege log production to accommodate the complex and voluminous discovery in this case. See, e.g., September 23, 2021 Order 16, ECF 182.[2] In other words, the parties and the court have been engaged in a long-running and detailed discussion of the state defendants’ claims to privilege and the document production issues that have arisen from those claims, which distinguishes this case from others where waiver was found after, for example, no privilege log was produced at all and the parties did not have any meaningful discussion of privilege issues until after the close of fact discovery. See Sherman v. Regents of Univ. of California, No. 20-CV-06441-VKD, 2022 WL 875652, at *3 (N.D. Cal. Mar. 24, 2022) (finding waiver where defendants did not produce any privilege log until seven days after close of fact discovery and failed to demonstrate diligence in attempting to produce a log). The overall timeliness of the final log is affected in part by the lack of a clear deadline for producing it. To start, neither Rule 26 nor Rule 34 provides a specific deadline by which a privilege log must be filed. See Burlington Northern, 408 F.3d at 1147. And, as described above, the parties have been engaged in a lengthy effort to complete the discovery process. A hearing was held on June 30, 2022, to discuss the parties’ progress in completing discovery and setting relevant deadlines. ECF 257. The parties were directed to submit a revised scheduling order, and consistent with the parties’ subsequent proposal, the court entered an order on July 14, 2022, which provided, in relevant part, that “[f]act discovery shall be held open only to complete the deposition of Defendant Hunter and resolve a discovery issue regarding Defendants’ responses to Plaintiffs’ Requests for Admissions, which may require motions practice.” ECF 258. Counsel for the state defendants apparently treated June 30, 2022, as the “close of fact discovery,” because that was the date of the hearing at which, according to counsel for the state defendants, plaintiffs represented that fact discovery was “complete,” save for the two remaining issues regarding the Hunter deposition and plaintiffs’ requests for admission. Supp. Br. 2, ECF 278; Smith Decl. ¶¶ 4–5. Based on that date, counsel for the state defendants “calculated” July 29, 2022, as the date they would serve the final privilege log. Supp. Br. 2–3, ECF 278. How counsel arrived at the “30-day after the close of discovery” deadline for producing the final log is not well-explained. On July 26, 2022, counsel for the state defendants emailed plaintiffs’ counsel to request a 14-day extension to August 12, 2022, because of COVID infections among various staff members’ families. Smith Decl., Ex. 1 at 2, ECF 260-1. Plaintiffs’ counsel asked for more information “on the log issue.” Rizzo Decl., Ex. 3, ECF 266. Counsel for the state defendants declined to provide more information, perhaps assuming that the clarification plaintiffs’ counsel sought was about personal health information. Smith Decl., Ex. 1 at 1, ECF 260-1. No further conferral occurred. Sensing the pending deadline, the state defendants’ counsel filed the present motion for an extension of time on July 29, 2022. ECF 259. The privilege log was produced on August 3, 2022. *3 The facts cut both ways on the issue of timeliness of the log. There was little clarity about when exactly the final privilege log should have been produced—perhaps by June 30, 2022, perhaps by July 14, 2022, or perhaps by some other date. On the one hand, the ambiguity about the date on which fact discovery closed mitigates the overall untimeliness of the final privilege log, as does the fact that privilege log issues were being worked on by parties with the court's guidance over time. See Khasin v. Hershey Co., No. 512CV01862EJDPSG, 2014 WL 690278, at *5 (N.D. Cal. Feb. 21, 2014) (finding that untimeliness of privilege log production was mitigated by defendants’ rolling production and that log was produced within five weeks of final production wave). On the other, the decision by the state defendants’ counsel to deliver a privilege log after the close of discovery without explanation, especially given the ambiguity of the deadline itself, is perplexing. But based on a holistic view of all those facts in context, the timeliness of the final log's delivery is not so “gross” as to warrant a waiver of the privilege here. See Resp. Supp. Br. 20, ECF 298. Plaintiffs’ assertion that the timing of this final privilege log has “deprived Plaintiffs tactically of any opportunity to evaluate the applicability of privilege or protection for the documents listed” on the final privilege log is not supported by the record. See Resp. Supp. Br. 19, ECF 298. The court specifically ordered the parties to submit supplemental briefing addressing the timeliness of the privilege log. Plaintiffs’ own brief recognizes, and repeatedly insists, that the court apply the Burlington Northern factors, the first of which examines “the degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged.” Resp. Supp. Br. 18 (citing Burlington Northern, 408 F.3d at 1149). But plaintiffs do not address this factor at all; indeed, plaintiffs specifically declined to “go back in time to establish that [plaintiffs] were actually prejudiced” by the sufficiency of the state defendants’ final privilege log. Resp. Supp. Br. 22, ECF 298 (internal quotation marks omitted). If there was some reason apart from the timing of the final privilege log that prevented plaintiffs from evaluating the privilege claims, this was the time to raise it. The third and fourth factors can be analyzed together. The magnitude of the document production at issue with the final privilege log is small. There are a total of 77 new documents for which the state defendants have claimed privilege, which is a fraction of the overall document production in this case—the state defendants have produced over 21,000 documents covering more than 230,000 pages. Chin Decl. ¶ 12, ECF 310; see also Resp. Supp. Br. 21 (identifying the number of new documents). The documents on the privilege log belong to two categories of documents over which the state defendants have consistently claimed privilege. See Reply Supp. Br. 12–14, ECF 309. Discovery in this case has been complex and contentious, in no small part because here, as has happened before, plaintiffs’ counsel seem to impugn the integrity of the state defendants’ counsel, accusing them of “tactical manipulation” and refusing to accept their representations about how they have managed discovery, without appreciating how plaintiffs’ counsels’ own conduct might also be perceived as “tactical manipulation” of the discovery process. Counsel for the state defendants have given detailed descriptions of their discovery process and how the final privilege log was produced. Reply Supp. Br. 4–10, ECF 309. Plaintiffs assert no authority for their request that the state defendants should provide more detailed information about their discovery process at plaintiffs’ counsel's behest, or to perform some type of audit of their discovery process, and no such additional efforts are necessary here. See Sur-Reply 2–4, ECF 331. There is no reason the court should not take counsel at their word, and plaintiffs have not established that, given the scope and complexity of the discovery here, the state defendants’ processes are unreasonable or otherwise not appropriate under the federal rules. See Laethem Equip. Co. v. Deere & Co., 261 F.R.D. 127, 137 (E.D. Mich. 2009) (“Although the omission of certain numbers from the list may raise questions, the Court presumes the truthfulness of representations made to the Court by attorneys.”); Andrich v. Arpaio, No. CV-16-02111-PHX-DJH (JZB), 2018 WL 9785501, at *3 (D. Ariz. Apr. 18, 2018) (same); see also Burlington Northern, 408 F.3d at 1149 n.3 (“We are well aware that, particularly in discovery-intensive litigation, compiling a privilege log within 30 days may be exceedingly difficult, even for counsel who are sophisticated, experienced, well-funded, and acting in good faith.”). And even if plaintiffs’ suspicions are true—that some of the items in question were marked as privileged before previous privilege logs were produced, see Sur-Reply 3, ECF 331—that is not necessarily inconsistent with the state defendants’ discovery process through which, to plaintiffs’ benefit, the state defendants reviewed and produced material in waves, prioritizing the most relevant and most disputed documents. Reply Supp. Br. 5, ECF 309. *4 Counsel for state defendants have, to their credit, recognized that their efforts to conduct discovery has been at times imperfect and slow. Reply Supp. Br. 11, ECF 309. And those efforts surely could have been better focused here. When counsel for state defendants’ “calculated” the deadline for delivering the privilege log and it fell after the limited extension of fact discovery on July 14, 2022, they should have communicated with plaintiffs’ counsel or sought clarification from the court about the outstanding privilege log and when it should have been delivered. The conferral about the currently pending motion should have been more robust. But there is no support for plaintiffs’ counsels’ apparent suspicion that counsel for the state defendants are engaged in a conspiracy to strategically withhold documents. See Resp. Supp. Br. 20, ECF 298 (asserting that counsel for the state defendants had a “plan” that was “hatched”). Waiver “is a harsh sanction reserved generally for unjustified, inexcusable, or bad faith conduct,” and there is no evidence that such conduct occurred here. Moe v. Sys. Transp., Inc., 270 F.R.D. 613, 623 (D. Mont. 2010). Other “particular circumstances of the litigation” cannot be ignored in the holistic evaluation that Burlington Northern requires. 408 F.3d at 1149. This case was abated for six months to accommodate medical treatment for the state defendants’ lead counsel. April 10, 2019 Order, ECF 100. Coordinating discovery across multiple state agencies in light of the multitudinous disruptions caused by the public health measures taken in response to the COVID-19 pandemic also played a part in discovery taking longer than plaintiffs’ counsel would have liked. These factors are less acute now to be sure, but they are relevant in evaluating the timeliness of the final privilege log production in full context. In short, the Burlington Northern factors do not support finding a waiver of specific privilege on the documents listed on the state defendants’ final privilege log. Nor have plaintiffs established a basis for reconsidering any previous rulings regarding privilege or its waiver. ORDER The state defendants’ motion to extend time for production of the state defendants’ privilege log (ECF 259) is granted. Footnotes [1] Collectively, DHS and the DHS-affiliated individual defendants are referred to here as the “state defendants.” [2] Plaintiffs’ counsel's admonition that the “rolling basis” of privilege log production was defense counsel's “construct” is inaccurate. See Resp. Supp. Br. 12 n.15.